Thursday, November 20, 2008
Colin Perkel, The Canadian Press, Chances of President Bush granting leniency to Conrad Black called infinitesimal
Doug Berman, Sentencing Law & Policy, Through the federal clemency looking glass with Holder
Carl Hulse, NYTimes, Democrats Gain as Stevens Loses Race
DOJ Press Release, Miami Physicians Sentenced to Prison for Their Roles in a $6.8 Million Medicare Fraud Scheme (one received 37 months and the other 48 months)
Karen Sloan, National Law Journal, Former U.S. prosecutor lands at King & Spalding
Sue Reisinger, Corporate Counsel, Mission Critical -The British government dropped a bribery probe of BAE, but U.S. prosecutors picked it up. In the meantime, BAE's GC cleaned up its act-enough to fend off an indictment?
Dan Slater has a wonderful piece on the importance of the Sixth Amendment's Right to Counsel and the implications to this right when the government proceeds criminally against legal counsel. See Dan Slater, Wall St Jrl, Scales of Justice: The Right to Counsel vs. the Need to Bar Tainted Legal Fees The article speaks directly to the Ben Kuehne case. For background see here and here. But I have to wonder about a statement at the end of the article that seems to imply that cases to PDs aren't increasing, so therefore lawyers aren't being skeptical about taking these cases. Could it perhaps be that there hasn't been an increase of drug cases to the PD's office because there has been such a strong focus by the FBI on terrorism and immigration, and a movement away from drug cases? Drug cases have declined and no longer hold the top priority that they did in past years. TRAC notes here in a September 2008 report:
"Ranked 3rd was "Drug Abuse Prevention + Control-Prohibited acts A" under Title 21 U.S.C Section 841. Title 21 U.S.C Section 841 was ranked 2nd a year ago, while it was the 1st most frequently invoked five years ago. It was ranked 1st ten years ago and 1st twenty years ago."
So perhaps lawyers are really being deterred from taking these cases, and the fact that PDs are not seeing a decrease in cases in their office is an indication of just that.
Tuesday, November 18, 2008
Everyone appears to be dropping Eric Holder's name as the likely next Attorney General. See Ashby Jones, WSJ Blog, Report: Obama ‘Deeply Interested’ in Eric Holder as AG; LA Times, Looks like Eric Holder, ex-Clinton acting AG, will be Obama's AG
Some appear to be focused on what role he may have played in the Marc Rich pardon (see here). But this focus is misplaced as the President has the power to pardon and there have been a lot more controversial pardons in the history of the U.S. (see William Jefferson Clinton, NYTimes, My Reasons for the Pardons). (I am still waiting to see President Bush's pardons -particularly as to whether Barney will be included - see here).
Further if Holder was "neutral, leaning for" the pardon, as stated by former President Clinton, than perhaps he was in part following the DOJ guidelines that advise against using tax offenses with a RICO charge (see here). (This Indictment included a RICO charge). RICO excludes tax predicates (see here), so using other predicates to enhance a tax case to bring it to a level of a RICO was just plain wrong, and one should credit Holder if it turns out that his hesitation was for this reason. (see here)
But what needs to be asked is where Eric Holder stands today on the "Holder Memo." It's a memo that went through many changes after it left his desk. (e.g., Thompson Memo, McNulty Memo, Filip Memo). The key question that needs to be asked now is where he stands on the attorney-client privilege and will he respect it. It also would be good to see if he will meet the wish list provided here.
Prosecutors have enormous power. They can pick and chose who to indict and for what crimes. The saying goes that a prosecutor can get a grand jury to indict a ham sandwich if the prosecutor wants that (see here for history of this phrase) -although some may claim otherwise. The prosecutorial discretion that comes with the charging power is often criticized, but prosecutors often contend that it is necessary for them to have such discretion.
The use of prosecutorial discretion is likely to be something that is examined in a Texas County of approximately 20,500 people (see here) as it looks like charges may be brought against one very high level official, and another who used to be in a top position. See CNN, Texas Grand Jury Indicts Cheney, Gonzales; Huffington Post (AP),Cheney, Gonzales Indicted By South Texas Grand Jury; Christopher Sherman, Houston Chronicle (AP), Dick Cheney, Alberto Gonzales indicted in S. Texas -Charges related to alleged abuse of prisoners in federal detention centers; Dallas Business Journal, Grand jury indicts Cheney, former AG
Chronicle of Higher Education, Cuomo Is Investigating College Ties to Student-Health Insurers
Chad Brey, CNN Money (Dow Jones), Lawyer Indicted In Tax-Shelter Fraud Scheme
Dan Slater, WSJ Blog, At Long Last, Enron Shareholders Set to Cash Out (w/ a hat tip to Bill Olis)
Margy Love, Washington Post (Op-Ed), In Defense of Lame-Duck Pardons
DOJ Press Release, Two Charged with Illegal Trading with Iran
Mike Scacella, BLT Blog, Sentencing Guidelines Disputed in D.C. Circuit Tax Fraud Case
Amir Efrati, WSJ Blog, NJ USA Christie Resigns, SDNY’s Garcia to Announce Resignation Today
Monday, November 17, 2008
An SEC press release reports that "[t]he Securities and Exchange Commission today charged Dallas entrepreneur Mark Cuban with insider trading for [allegedly] selling 600,000 shares of the stock of an Internet search engine company on the basis of material, non-public information concerning an impending stock offering."
Use of the word charge may leave the wrong impression. This is not a criminal matter, but rather a civil complaint. The complaint can be found here.
The SEC Litigation Release states in part:
"The Commission's complaint alleges that Cuban violated the antifraud provisions of the federal securities laws by engaging in illegal insider trading in the securities of Mamma.com Inc. ("Mamma.com"), a publicly traded Internet search engine company (now known as Copernic Inc.) based in Montreal, Canada. According to the complaint, in June 2004, Cuban sold his entire 600,000 share position in Mamma.com on the basis of material, non-public information concerning an impending PIPE (private investment in public equity) offering by the company. The complaint alleges that Cuban avoided losses in excess of $750,000 by selling his stock prior to the public announcement of the PIPE offering."
Mark Cuban, owner of the Dallas Mavericks' blog is located here. You'll find that his lawyer is Ralph C. Ferrara of Dewey & LaBoeuf (DC) and that his lawyer is not letting him say much - one quote -clearly a good move. But it looks like this matter has been going on for awhile and the lawyer states "Mr. Cuban intends to contest the allegations and to demonstrate that the Commission’s claims are infected by the misconduct of the staff of its Enforcement Division." More is stated here. This is clearly a case to follow.
Addendum - Liz Moyer & Andrew Farrell, Forbes Magazine, SEC Guns For Billionaire Mark Cuban
NYTimes, Dealbook, S.E.C. Accuses Mark Cuban of Insider Trading
Mike Scarcella, BLT Blog, Judge Rules Against White House in E-mail Dispute
Jon Swartz, USA Today, Hackers, phishers can't get away with it like they used to
Stirling Newberry, Firedoglake, Who is Neil Barofsky, And Can We Trust Him to Watch the 700 Billion Collar Cookie Jar?
Matthew Barakat, Houston Chronicle (AP), Ex-Tech billionaire gets 9 years for stock fraud
Unlike most white collar cases that have individuals who have no prior convictions, reports are that Barney the white house canine is a repeat offender. See Rodrique Ngowi,TBO (AP), Reporter wasn't White House dog's 1st bite victim. And it seems that the victims have a commonality (all press people).
It was questioned here whether Barney would appear on the President's outgoing pardon list. Most pardon grants are first offenders, and often their convictions are very old. Who will receive President Bush's outgoing pardons remains to be seen. Mind you, I don't have a dog in this fight.
Sunday, November 16, 2008
In my wish list to Obama and his next AG, I ask them to "re-examine the Ben Kuehne case." It is hard to imagine that a re-examination with fresh eyes would come to the same result. (See background here)
Normally when someone is indicted, the surrounding friends slowly disappear - they distance themselves from the accused. The fact that the opposite is happening in the Ben Kuehne case is another indication that something just isn't right here.
Check out - David Oscar Markus, Ben Kuehne -This email invitation is making the rounds. Should be quite an event; Julie Kay, National L J., Miami's defense community rallies for indicted — and cash-strapped — attorney